The National Security Law Podcast

After a wholly-frivolous episode last week, we are back with…well…a slightly-frivolous episode this week.  Tune in as your co-hosts Steve Vladeck and Bobby Chesney review and debate: * The likely procedural, jurisdictional, and other legal issues that may arise if and when the Senate issues a subpoena to John Bolton and the White House attempts to prevent his testimony. * The Justice Department’s recent decision to concede the impropriety of two of the FISA Title I applications that had been submitted to the FISC in relation to Carter Page, and what this might mean as we continue to barrel towards the Ides of March deadline for renewal (or not) of four FISA authorities. * Testimony at GTMO from the architects of the “Enhanced Interrogation Techniques” program CIA used on high-value detainees, reminding us among other things that the 9/11 trial is supposed to start in (checks watch) less than a year. * Eddie Gallagher’s decision to denounce the servicemembers who testified against him, and then to circulate information about precisely where those people can be found, might seem merely bad taste in the case of a civilian.  But for a retired servicemember subject to recall, and subject as well to the rather broad scope of certain UCMJ offenses, might the answer be different? The show concludes with a reminiscence about Kobe Bryant, and then a review of…Picard, of course!

Oh heavens, what were they thinking?  This week on the National Security Law Podcast, your hosts Steve Vladeck and Bobby Chesney bring you…well, not a single second of national security law talk.  Nope, instead this episode is all-frivolity from start to finish.   Movies, tv, sports, books…anything but the actual topic of the show!  But, hey, maybe you could use a break from the headlines?  Rest assured, we’ll be back next week with our usual format.

It’s episode 150, and to celebrate we have a special guest: The Director of the Cybersecurity and Infrastructure Security Agency (CISA), Christopher Krebs!  That’s right, we’ve got all the cybers this week, and a fun guest to walk us all through it.   That, plus a smattering of sign-stealing frivolity and Rush appreciation!  We’ll be back next week with our usual takes on the news…

Not surprisingly, this weeks episode focuses entirely on the set of legal and policy questions raised by the airstrike that killed, among other, the Iranian general Qassim Soleimani in Iraq.  But of course there is still frivolity, too, as the show finishes with discussion of … Frozen II.

Tired of watching the impeachment?  Turn away from your monitor/tv, put in your earbuds, and go for a nice walk while listening to the latest National Security Law Podcast!  This week we have Professors Chesney and Vladeck discussing and debating: * The DOJ OIG Report and its account of 17 significant errors associated with the FBI’s presentation of information in the series of FISA Title I applications concerning Carter Page.  This, of course, leads to a larger discussion of FISA reform. * SCOTUS designates March as Subpoena-palooza month!  That’s right, oral argument in all three Trump-related subpoena cases will occur in consolidated fashion then, with an opinion then expected by the end of June. * The National Defense Authorization Act for FY’20 is on its way to the President’s desk, and will soon be law. But what you really want to know, of course, is … how was the Dear Evan Hansen performance the other night?  Your cohosts were there, and have a report!

Welcome back to the National Security Law Podcast!  This week we discuss: * The two Articles of Impeachment * The Inspector General’s Report on the origins and conduct of the FBI’s investigation into Russian election interference * Amazon’s lawsuit arguing that President Trump improperly influenced the DOD cloud contract bid selection * The NDAA and the legal framework for DoD to conduct (and counter) grey zone information operations * The investigative report on persistent overstatement of success in Afghanistan * The attempt to Dzokhar Tsarnaev to make a claim for juror/prosecutor bias in the Bostom Marathon bombing case * The decision to suspend the process of designating 1 or more Mexican drug cartels as Foreign Terrorist Organizations That, plus some frivolous commentary on football.  Alas, no review (yet) of Mandalorian episode 5….

Welcome back to the National Security Law Podcast!  Tune in as Professors Vladeck and Chesney debate and discuss the week’s national security law news, including: * Trumplandia: The House Intelligence Committee’s report shines a spotlight on certain call records, leading some to question how such records lawfully are obtained by investigators.  This leads to a discussion of the Fourth Amendment, the third-party doctrine, the Stored Communications Act, and both grand jury and congressional subpoenas. * More Trumplandia: The Second Circuit has ruled against an effort to prevent Deutsche Bank and Capital One from complying with a Congressional subpoena for Trump-related records, adding to the slew of cases on this topic. * Adham Hassoun and indefinite immigration-law detention for dangerous persons: Back in episode 116 we noted that Hassoun had completed his 15-year sentence (following a conviction for involvement in a murder conspiracy under 18 USC 956(a)), but is being held pending removal…with little prospect for effecting that removal, given his stateless-status.  He is now subject to the not-previously-used USA PATRIOT Act Section 412 authority, which involves an initial 7-day window for detention and then calls for semi-annual judicial review.  The case presents both procedural due process and substantive due process issues. * Designating Mexican drug cartels as “foreign terrorist organizations”–President Trump says this is in the works at last, so we review the legal and policy aspects. * National Security Division Roundup: We offer brief notes on a few major recent developments in terrorism-related cases. But it’s all about the frivolity, so stay till the end for our idle opinions on what ought to happen with the College Football Playoffs final four, and especially for our take on episode 4 of the Mandalorian.

Happy Thanksgiving to all!  If you are stuck in an airport or on a long drive this week, we’ve got you covered for at least one hour, as Professors Chesney and Vladeck discuss and debate: * The military commission cases: we provide a full “reset” bringing you up to speed on where things stand with each of the major cases (including a reminder about an important pending motion in the 9/11 case) * National Cupcake Day gives way to the Ides of March, as Congress pushes the sunset for several notable FISA provisions from 12/15/19 to 3/15/20 * The Secretary Esper/Spencer dispute and the good-order-and-discipline issue raised by the president’s intervention in the Gallagher case * CENTCOM and SDF get the band back together in Syria, and detainees result…which is a timely reminder that we still depend on SDF to run detention ops in Syria. * Subpoena time for Don McGahn?  We consider the prospects on appeal, as well as the implications for former National Security Advisor John Bolton. But of course what you really want to know is what your hosts think of episode 3 of the Mandalorian.  That, plus Lamar Jackson!

Episode 144 is here! It was no easy task to sort out which topics to discuss this week, but in the end the Trumplandia segment prevailed over almost all the others.  The end result?  Tune in to hear Professors Chesney and Vladeck discuss and debate: * The latest developments in the Impeachment Inquiry (including today’s testimony from Ambassador Sondland). * President Trump’s decision to issue pardons to two soldiers facing murder charges and to restore rank to a Navy SEAL previously convicted for posing for pictures with a dead detainee. * The Trump Administration’s apparent decision to alter the longstanding U.S. position that Israeli settlements in occupied territory violate international law. * The latest twist in the two Mazars subpoena cases, including the administrative stay issued by Chief Justice Roberts in of them. * Attorney General Barr’s barn-burner of a speech to the Federalist Society’s National Convention, which offered a controversial take on an array of presidential power and national security law issues (including a surprise appearance by the Supreme Court’s 2008 Boumediene decision (cast in the unlikely role of most-outrageous infringement of Article II powers decision ever). * A district court decision in the Muthana case, resolving it on narrow factual grounds. From there, it’s a pop culture spoiler fest, with reviews of the first episode of the new season of The Crown and the first two episodes of The Mandalorian.  Hey, how about a cross-over between those shows???

When you are done watching the impeachment hearings and just can’t take it anymore, it’s time to open up a can of … National Security Law Podcast!  For your happy hour or other occasions, we’ve got a fresh episode. Tune in as Professors Chesney and Vladeck discuss and debate: * Yesterday’s SCOTUS argument in Hernandez (the cross-border shooting case, which Steve argued!) * Alasaad v. Nielsen, in which a district judge rejects the government’s position that the Fourth Amendment border exception applies with its usual force in relation to comprehensive searches of phones and other electronics at ports of entry.  Key takeaway: there still is no *warrant* requirement, yet there is a requirement not only that there be reasonable suspicion but that said suspicion concern the presence of *contraband*–i.e., no fishing expeditions for other purposes. * National Cupcake Day (Dec. 15) approaches…and with it, the sunset for a series of foreign-intelligence collection authorities (Lone Wolf, Roving Wiretap, Section 215, and USA Freedom Act CDRs) * Rumor has it…that President Trump wants to can the IG for the IC on the ground that his handling of the Vindman complaint was not sufficiently loyal.  Ugh.  But make no mistake: Presidents can remove IGs if they want; they are not protected by for-cause limitations. * Not impeachable if no ultimate follow-through?  Sigh.

What fun!  We recorded this one in front of a large live audience at the Annual Review of the Field conference run by the ABA Standing Committee on Law and National Security, and we did it as a joint podcast with our friends at ABA’s National Security Law Today podcast: Elisa Poteat and Yvette Bourcicot!  We covered: * Islamic State detainees, included (but not limited to) the Beatles * The approach of National Cupcake Day (a.k.a. December 15th, a.k.a. the date when several FISA surveillance and document-production authorities will sunset if Congress does not act) * A review of three key Supreme Court cases that are pending this term (cross-border shootings and the Constitution, the Suspension Clause, and the President’s power to remove independent agency heads) All that and more, but, alas, no frivolity this week!  We just didn’t have the time.  But, don’t worry we’ll be twice as frivolous next week!  

Granted, it’s not Days of Future Past, but our episode 141 is still pretty good!  This week, Professors Vladeck and Chesney discuss and debate: * The al-Baghdadi raid (and misunderstandings about Congressional notification) * A GTMO habeas decision in Abdulrazzaq * Who will be the next Secretary of Homeland Security? Debating the authority of an Acting Secretary to alter the order of succession at slots #4 onward… * Trumplandia & Impeachment: What to make of the decision to vote on authorizing the inquiry after all?  And is anyone left waiting to be persuaded one way or the other? Frivolity, inevitably, covers the World Series (especially the controversy from Game 6), with some GoT for spice along the way!  

We’ve got a short one this week, but also we didn’t plan or prep much, so we have that going for us! Tune in as Professors Vladeck and Chesney discuss the 2nd Circuit oral argument in Trump v. Vance (regarding the President’s claim of temporary immunity from criminal investigation), and a pair of important Supreme Court cert. grants (one involving the scope of the Suspension Clause, and the other giving rise to the possibility of a ruling undermining the constitutionality of the “independent” agency model (in which President’s may not remove agency heads at will).  But as always there is frivolity too, so stay to the end for a take on the new Star Wars trailer as well as NBA predictions!

We recorded today before a live audience in Austin! Austin Hall, that is, on the campus of Harvard Law School!  Special thanks to Matt Morris and the great students of the Harvard National Security & Law Association, and to all who attended! We certainly didn’t lack for topics.  Professors Vladeck and Chesney discussed and debated: * The “Beatles” detainees: What are the hurdles to continued military detention of these two formerly-British Islamic State members who are now in U.S. custody in Iraq?  Will courts assert jurisdiction? Would they find that IS is in the scope of the ’01 AUMF and the NDAA FY’12?  Is there still an armed conflict?  And if they instead are prosecuted, what are the hurdles?  What does pending litigation in the UK Supreme Court have to do with it all? * Trumplandia: So much to discuss, including Giuliani’s peremptory strike against testifying and the question of attorney-client privilege, the Mazars decision and Judge Rao’s dissent, and much more. * DHS roundup: Who is the acting secretary, who is not eligible to be so designated, and what’s this about an administrative subpoena authority designed to help deal with botnets? Being in the greater Boston region, our frivolity had to be Boston-themed of course.  So, tune in for a wicked and rambling run through of Boston-based movies, tv shows, and sports heroes.  Better still, stay tuned after that so you can enjoy the extended audience Q&A session that followed it all!

In addition to quoting They Might Be Giants lyrics, this week’s episode features cohosts Bobby Chesney and Steve Vladeck taking on three big issues: * The Impeachment Inquiry & the White House Counsel’s Letter on Non-Cooperation * President Trump’s decision to abandon America’s Kurdish allies and thus set in motion the potential release of thousands of Islamic State fighters * A set of newly-declassified decisions by the FISC (and FISC-R) involving the latest round of Section 702 certification, including a finding that compliance problems at FBI (with respect to running US person queries of the 702 database) amounted, in the totality of the circumstances, to a Fourth Amendment violation. As for frivolity: the world of sportsball meshed with foreign relations as the NBA quivered in the face of a Beijing backlash, all triggered by a tweet from the Rockets’ GM.  “It is time for us all to decide who we are…”